Terms & Conditions
Terms and Conditions
This Software Services Agreement, including Sections 1 through 26 (and the definitions set forth in Section 25), is entered at and as of the date (the "Effective Date") when Subscriber accepts this Agreement or begins utilizing the Service. This Agreement is by and between Notes Trader LLC, a Kansas limited liability company ("NotesTrader™"), and Subscriber.
1. NotesTrader™ Software as a Service.
NotesTrader™ grants Subscriber a non-exclusive, non-transferable, limited right to access and use the Service within the United States during the Term of the Agreement solely for Subscriber's internal business purpose of buying or selling notes and other negotiable instruments and related security agreements and instruments (e.g., mortgages or deeds of trust) (collectively being the "Asset” or “Assets”). As of the date of this Agreement, the Service is a marketplace permitting:
Subscribers seeking to sell one or more Assets ("Seller Subscribers") to upload information concerning each such Assets, as well as information about the related property ("Assets Related Documentation") to the Service for advertisement to third party subscribers; and Subscribers seeking to acquire Assets ("Buyer Subscribers") to view Asset Related Documentation and other Content provided by Seller Subscribers; and Buyer Subscribers and Seller Subscribers to: communicate via the Service to negotiate price and terms and, if determined by them, to tentatively agree to the purchase price and sale of an Asset; and conduct a due diligence review of Asset Related Documentation to determine whether or not to purchase on the terms of the tentative agreement such Asset; and arrange for, and consummate the purchase and sale of Assets through third party escrow agents, primarily being licensed attorneys in the State of Kansas, selected by NotesTrader™ (each being an "Escrow Agent"). The Escrow Agent shall first inspect the Asset Related Documentation to ascertain whether or not it is the original documentation. NotesTrader™ shall select an alternative Escrow Agent if Subscriber reasonably objects to the original selected Escrow Agent. Subscriber authorizes and directs the Escrow Agent to the Fees due NotesTrader™ from Subscriber as and when same become due from the amounts held by Escrow Agent for Subscriber. The arrangement between Escrow Agent and Subscriber shall be based upon the terms and conditions of the Escrow Agreement between them and NotesTrader™ shall have no liability or obligation, and Subscriber shall not look to NotesTrader™ for or concerning, the actions and undertakings of the Escrow Agent or of the other subscriber party to the Asset purchase and sale transaction. NotesTrader™ may, from time to time, for the convenience of Subscriber, provide a form written Purchase and Sale Agreement that Subscriber may elect, in Subscriber's sole and absolute discretion, to use to consummate a purchase and sale; provided that, Subscriber acknowledges and agrees that NotesTrader™ is not providing legal, financial or other professional advice and shall have no liability or obligation whatsoever concerning any such Purchase and Sale Agreement. NotesTrader™ strongly suggests that Subscriber secure appropriate third party professional advice concerning any purchase or sale of an Asset.
After the provision of all required information, including, without limitation, an e-mail address, NotesTrader™ shall provide Subscriber with a unique identifier to use to access and use the Service (the "Username"). Only Subscriber shall be entitled to use such Username and the Username may not be transferred to any other person or entity. Subscriber shall not permit any other person to use the Username or to have access the Service as, by or through Subscriber.
From the time the Username is issued until NotesTrader™ acknowledges that it has been deleted or changed, all acts, communications, agreements and transactions undertaken under the Username shall be the acts, communications, agreements and transactions of Subscriber.
ALL CONTENT IS PROVIDED AS-IS, WHERE-IS WITH NO REPRESENTATIONS OR WARRANTIES WHATSOEVER.
NotesTrader™ does not screen or otherwise analyze or review Content at or prior to or after the time it is uploaded to the Service and, except for the license granted to it below, makes no claim to any Content. NotesTrader™'s sole obligation concerning the Content shall be to display it. Subscriber provides NotesTrader™ with a fully paid non-terminable license to:
(A) utilize the Content provided by Subscriber to the Service from time to time, in connection with the Service; to undertake NotesTrader™'s other obligations under this Agreement; and to generate, publish and otherwise utilize aggregate anonymized information about the Service; and
(B) make copies of the Content. NotesTrader™ may, in its sole and absolute discretion and without notice to Subscriber, remove, revise, amend or otherwise correct any Content that NotesTrader™ believes to infringe upon the intellectual property rights of any person or entity, or is libelous, scandalous, false, fraudulent or provided for a purpose other than that for which the Service is permitted to be utilized. NotesTrader™ has no obligation whatsoever to store or retain any Content and Subscriber agrees to retain copies of all Content deems necessary.
4. Limitations on Services. Subscriber shall not:
access or use the Service via any automated means, including, without limitation, use any scripted, robotic or software means, except for such scripts or processes as may be provided by NotesTrader™ from time to time; reproduce, duplicate, copy, sell, resell or exploit access to the Service, use of the Service, or any portion of the Service, including, but not limited to, the software coding or visual design elements; modify, reverse engineer, adapt or otherwise tamper with the Service or modify another website so as to falsely imply that it is associated with the Service, NotesTrader™, or any other software or service provided by NotesTrader™; knowingly use the Service in any manner that:
(1) infringes or may infringe any third party intellectual property or moral rights; or
(2) is unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or in violation of the terms of this Agreement; remove any copyright or other intellectual property notices of NotesTrader™; and knowingly use the Service to upload, post, host, or transmit any unsolicited bulk e-mail (e.g., spam), viruses, destructive, malicious or self-replicating computer software.
In exchange for the ability to access and use the Service and access to the Confidential Information, Subscriber agrees that he, she or it will not:
(A) communicate with any other subscriber concerning any Asset other than via the Service;
(B) suggest, imply or otherwise cause any other subscriber to deal with Subscriber except through the Service;
(C) close or consummate and purchase any Asset, except in accordance with the Service and through an Escrow Agent.
Subscriber acknowledges that, without the restrictions set forth in this Section 5, NotesTrader™ would not grant Subscriber access to and the right to use the Service or access to the Confidential Information. NotesTrader™ shall be entitled to recover liquidated damages in the amount of $6,000 for each violation of the provisions of this Section 5, it being the understanding of the parties that the actual damages of NotesTrader™ for each such violation will be difficult to determine and the foregoing amount reflects the best estimate of such damages as of the date of this Agreement.
NotesTrader™ shall have the right at any time, and from time to time, to modify or to discontinue the Service, temporarily or permanently, with or without notice, in whole or in part; and to temporarily suspend Subscriber's access to the Service for operational or other purposes, including, but not limited to, maintenance, repairs or installation of upgrades and emergencies, but it will endeavor to provide notice prior to any non-emergency suspension.
7. Ownership of Services.
The Service, the software utilized to provide the Service, and all intellectual property and moral rights shall be and remain the sole property of NotesTrader™ and, except for access to the Service on the terms set forth in this Agreement, Subscriber shall not have or receive any rights or interests in any of the foregoing.
8. Obligations Concerning Confidential Information. Subscriber shall:
not disclose, or allow any person or entity access to Confidential Information; not make any use, commercial or otherwise, of the Confidential Information; exercise reasonable diligence to maintain the confidential, secret or proprietary nature of all Confidential Information and to prevent its use, utilizing such security measures as may reasonable under the circumstances, but not less than that utilized by the Receiving Party for its own Confidential Information.
Notwithstanding the foregoing, Subscriber may:
(AA) disclose Confidential Information:
(1) to your professional advisers who are under an obligation of confidentiality to Subscriber and who are providing professional services to Subscriber in connection with Subscriber's purchase or sale to which the Confidential Information applies; or
(2) if and only if:
(a) compelled by, and solely to the minimum extent necessary to comply with, bona fide unaffiliated third party initiated legal process (including, but not limited to, deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar legal process); and
(b) reasonable advance written notice is provided to the Disclosing Party (to the extent not prohibited by applicable law) including the relevant details of the legal process so as to enable the Disclosing Party to protect its rights in and to the subject Confidential Information; and
(BB) use Confidential Information in connection with a due diligence review of an Asset for purchase, with making an Asset available for sale via the Service, and with consummating a purchase or sale through the Service and via an Escrow Agent.
Upon Subscriber's acquisition of an Asset, the restrictions of this Section 8 shall not apply to Confidential Information of or pertaining to such Asset.
Seller Subscriber shall pay NotesTrader™ a fee (the "Fee") of one percent of the purchase price of each Asset that is sold:
Less than $1,000,000
$1,000,000 - $5,000,000
Greater than $5,000,000
The Fee shall be due and payable at the time the purchase price is received by the Seller Subscriber, and Seller Subscriber directs and authorizes the Escrow Agent to deduct the Fees from the purchase price at the time of the closing and consummation of each purchase or sale, and to pay such Fees to NotesTrader™.
Payments received by NotesTrader™ more than ten (10) days from when they are due shall be subject to a late fee of the greater of 5% of the amount due or $50.00, to offset NotesTrader™'s costs incurred in connection with late payments, and all amounts due and unpaid shall bear interest from the date due until paid at the lesser of 1.5% per month or the highest rate permitted by applicable law.
If Subscriber does not complete the sale, NotesTrader™ retains the right to collect any fees owed and retain any fees paid if Subscriber was negligent in completing the closing based on NotesTrader™'s discretion.
10. Term and Termination.
The term (the "Term") of this Agreement shall commence on the Effective Date and shall continue until terminated in accordance with this Agreement.
Either party may terminate this Agreement on written notice to the other party; provided that, if termination is by Subscriber and the purchase or sale of an Asset is pending, termination shall not occur until the consummation or termination of such purchase or sale.
Upon a termination of this Agreement for any reason whatsoever, NotesTrader™ may terminate Subscriber's access to the Service and Subscriber shall immediately cease using the Service.
EXCEPT FOR THE EXPRESS WARRANTIES SPECIFICALLY SET FORTH BELOW, NOTESTRADER™ MAKES NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED CONCERNING OR RELATING TO ANY OF THE SERVICE OR THE ESCROW AGENT, INCLUDING, BUT NOT LIMITED TO:
(A) WARRANTIES OF MERCHANTABILITY;
(B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; AND
(C) WARRANTY CONCERNING INTELLECTUAL PROPERTY RIGHTS. NOTESTRADER™ ONLY WARRANTS THAT IT CAN PROVIDE SUBSCRIBER THE ACCESS TO THE SERVICE.
12. Improvements and Suggestions by any Customer.
All right, title and interest in and to, and the right to pursue protection for, improvements, enhancements and modifications the Service or its use or applicability that are suggested or made by Subscriber (being "Improvements") shall vest solely with NotesTrader™, and Subscriber does assign all such Improvements to NotesTrader™. No license is granted to Subscriber in, to or under any Improvements or other intellectual property or moral right owned or otherwise assertable by NotesTrader™ by express or implied grant, estoppel or otherwise, except solely when and if incorporated into a future revision of the Service. All benefits from the use of any such Improvements shall inure solely to NotesTrader™.
13. LIMITATION OF LIABILITY.
NOTESTRADER™ SHALL NOT BE LIABLE TO SUBSCRIBER FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOSS OF BUSINESS OR OTHER ECONOMIC DAMAGE, OR INJURY TO PROPERTY.
IN ADDITION, IN NO EVENT SHALL THE DAMAGES PAYABLE BY NOTESTRADER™ TO SUBSCRIBER OR ANY PERSON OR ENTITY CLAIMING THROUGH SUBSCRIBER EXCEED THE GREATER OF $1,000.00 OR THE FEES PAID BY SUBSCRIBER TO NOTESTRADER™ IN THE PARTICULAR TRANSACTION AT ISSUE.
EACH PARTY ACKNOWLEDGES THAT: THIS SECTION REFLECTS AN INFORMED, VOLUNTARY ALLOCATION OF THE RISKS (KNOWN AND UNKNOWN) THAT MAY EXIST IN CONNECTION WITH THE ARRANGEMENTS SET FORTH IN THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, THE USE OF THE SERVICE, STORAGE AND DISSEMINATION OF THE CONTENT AND THE EXERCISE OF THE LICENSED RIGHTS; AND SUCH VOLUNTARY RISK ALLOCATION WAS A MATERIAL PART OF THE BARGAIN BETWEEN THE PARTIES; AND THE ECONOMIC AND OTHER TERMS OF THIS AGREEMENT WERE NEGOTIATED AND AGREED TO BY THE PARTIES IN RELIANCE ON SUCH VOLUNTARY RISK ALLOCATION.
NotesTrader™ shall hold Subscriber harmless from and against any claims, obligations, losses, damages, liabilities, fines, costs and expenses (including, without limitation, reasonable attorney's fees pretrial, trial and appellate) (collectively "Losses") arising out of or incurred as a result of or in connection with NotesTrader™' material breach of this Agreement; excluding all Losses arising from Subscriber's breach of this Agreement.
Subscriber shall hold NotesTrader™ and its members, managers and employees, collectively and individually, harmless from and against any Losses arising out of or incurred as a result of or in connection with: (A) Subscriber's material breach of this Agreement; or (B) a third party claim based on Subscriber's: (1) use of the Services; or (2) Content; excluding all Losses arising from NotesTrader™' breach of this Agreement.
15. Entire Agreement, Waiver and Modification.
This Agreement sets forth the entire understanding of the parties concerning the subject matter of this Agreement and incorporates all prior negotiations and understandings.
There are no covenants, promises, agreements, conditions or understandings, either oral or written, between them relating to the subject matter of this Agreement other than those set forth in this Agreement.
No purported waiver by any party of any default by another party of any term or provision contained in this Agreement shall be deemed to be a waiver of such term or provision unless the waiver is in writing and signed by the waiving party. No such waiver shall in any event be deemed a waiver of any subsequent default under the same or any other term or provision contained in this Agreement.
Except as set forth in Section 16, no alteration, amendment, change or addition to this Agreement shall be binding upon any party unless in writing and signed by the party to be charged.
16. NotesTrader™ Amendment by Notice.
NotesTrader™ may at any time and from time to time amend this Agreement by providing not less than fifteen (15) days advance notice (the "Amendment Notice") to Subscriber setting forth the substance of such amendment. If Subscriber does not terminate this Agreement within the foregoing period, the amendment shall be effective as of the date set forth in the Amendment Notice.
17. Successors and Assignment.
All of the provisions of this Agreement shall be binding upon and inure to the benefit of the parties and, except as otherwise specifically provided in this Agreement, their respective permitted successors and assigns. No Customer may assign or delegate its rights or obligations under this Agreement. NotesTrader™ may assign and delegate its rights and obligations under this Agreement without notice to any Customer at any time and from time to time.
Any consent, waiver, notice, demand, request or other instrument required or permitted to be given and effective under this Agreement shall be in writing and deemed to have been properly given upon: (A) actual delivery if hand delivered; (B) the next business day after: (1) transmission by overnight express courier service (e.g., Federal Express), freight prepaid to the address for such party; or (2) in the case of a notice provided by NotesTrader™, being sent to the e-mail address for the Subscriber associated with the Username; (C) the next business day after transmission by facsimile (with receipt showing successful transmission) to the facsimile number for such party set forth in the records for the Service; or (D) three (3) business days after being sent by certified United States mail, return receipt requested, postage prepaid, to the address for such party set forth in the records for the Service. Either party may change its address or facsimile number for notices by changing it on the records for the Service.
The captions and paragraph letters appearing in this Agreement are inserted only as a matter of convenience. They do not define, limit, construe or describe the scope or intent of the provisions of this Agreement.
20. Partial Invalidity.
If any term or provisions of this Agreement, or the application thereof to any person or circumstance, shall be invalid or unenforceable, the remainder of this Agreement, or the application of such term or provision to persons or circumstances, other than those as to which it is held invalid, shall both be unaffected and each term or provision of this Agreement shall be valid and be enforced to the fullest extent permitted by law.
21. Applicable Law and Venue and Forum.
The provisions of this Section are a material part of the Agreement of the parties. But for the provisions of the Section, NotesTrader™ would not enter into this Agreement, grant the Licensed Rights, or provide any Customer with access to the Service.
THIS AGREEMENT SHALL BE CONSTRUED AND GOVERNED UNDER AND BY THE LAWS OF THE STATE OF KANSAS FOR CONTRACTS EXECUTED AND TO BE PERFORMED IN KANSAS. EXCLUSIVE VENUE FOR ANY LEGAL ACTION AUTHORIZED UNDER THIS AGREEMENT OR RELATING TO THIS AGREEMENT SHALL BE IN JOHNSON COUNTY, KANSAS.
22. Third Party Beneficiaries.
There are no intended, express or implied third party beneficiaries to this Agreement.
23. WAIVER OF JURY TRIAL.
THE PARTIES KNOWINGLY AND VOLUNTARILY WAIVE ALL OF THEIR INDIVIDUAL AND COLLECTIVE RIGHTS TO A TRIAL BY JURY ON ANY AND ALL ISSUES PERTAINING TO OR ARISING OUT OF THIS AGREEMENT AND THE PRODUCTS.
24. Attorneys' Fees.
In the event any litigation, mediation, arbitration, or controversy between the parties arises out of or relates to this Agreement or the Service, the Prevailing Party in such litigation, mediation, arbitration or controversy shall be entitled to recover from the other party all reasonable attorneys' fees, expenses and suit costs, including any associated with any appellate proceedings and any post-judgment collection proceedings.
Agreement means this entire Software Services Agreement, as may be amended from time to time. Confidential Information means: all confidential or proprietary information of, about, or relating to:
NotesTrader™; or other subscribers that is received or accessed via the Service; or Assets, Asset Related Documentation, and property that is the subject of an Asset that is received or accessed via the Service, as well as offers and transactions concerning or relating to Assets; or all information provided by any subscriber of NotesTrader™ other than Subscriber; provided, that, "Confidential Information" shall not, in any event, include any information that becomes generally known or publicly available upon reasonable inspection other than information that became generally known or publicly available as a result of a breach of an obligation of confidentiality to any of Seller or the Company.
Content means any information uploaded or posted to the Service by Subscriber, including, without limitation, information about Subscriber or any Asset offered for sale by Subscriber.
Prevailing Party means, generally, the party in any litigation, mediation, arbitration or other controversy (each being a "Dispute") that prevails on substantially the majority of the issues in the Dispute; provided that, if one party provides an offer of judgment or settlement in any Dispute and the outcome of the Dispute is not material different that such offer, the party making the offer shall be the Prevailing Party in such Dispute. For purposes of this definition, materially different shall include, in the case of money damages, the outcome of the Dispute provides for damages in excess of 115% of such offer.
Service means the services provided from time to time by NotesTrader™ through its NotesTrader™ Software-as-a-Service offering.
Sections 3, 5, and 8 through 27 shall survive the termination, cancellation or expiration of this agreement by whatever means for whatever reason.